HCJD/C-21

JUDGMENT SHEET

LAHORE HIGH COURT

RAWALPINDI BENCH, RAWALPINDI
JUDICIAL DEPARTMENT
Criminal Appeal No.109 of 2009
(Rizwan Versus The State etc.)

JUDGMENT
Date of Hearing:

08.09.2015

Appellant by

Raja Ghaneem Aabir Khan, advocate

Complainant by

Mr. Faisal Khan Niazi, advocate

State by

Mr. Muhammad Waqas Anwar, Deputy Prosecutor

General along with Mohsin, ASI

Syed Shahbaz Ali Rizvi, J:- Through this appeal, Rizwan,

appellant has assailed the judgment dated 19.03.2009 passed by the
learned Special Judge, Anti Terrorism Court-II, Rawalpindi
whereby, the appellant was convicted under Section 7(e) of the Anti
Terrorism Act, 1997 read with Section 365-A, PPC and sentenced to
imprisonment for life along with forfeiture of his entire property in
case FIR No.455 dated 15.07.2008, offence under Section 365-A,
PPC registered at police station Wah Cantt District Rawalpindi. He
was, however extended the benefit of Section 382-B of the Code of
Criminal Procedure, 1898.
2.

Brief facts of the case, as disclosed by Rehmat Ullah Khan,

complainant (PW-2) in his application (Exh-PA) dated 15.07.2008,

on the basis of which formal FIR (Exh-PA/1) was registered, are that
Qadir Khan (PW-5) son of his maternal uncle Inam Gul (PW-3) was
resident of Tola Mangli Tehsil Isa Khail District Mianwali and
student of Wah British Institute. On the evening of Saturday, Qadir
Khan was kidnapped from Wah and the kidnappers were demanding
Rs.5,00,000/-. They were calling the complainant from the mobile
phone of Qadir Khan (PW-5).

Criminal Appeal No.109 of 2009

3.

Rizwan (appellant) was arrested in this case on 06.08.2008 by

Abdul Sattar, Inspector/CID (PW-10) and during his personal search

Rs.10130/-, mobile phone, driving license, a watch and other
documents/ papers were recovered from his possession which were
taken by the investigation officer vide recovery memo Exh-PB. After
completion of the investigation report under Section 173 of the Code
of Criminal Procedure, 1898 was submitted. Learned trial court after
observing all the pre-trial codal formalities, charge sheeted the
appellant to which he pleaded not guilty and claimed to be tried.
4.

In order to prove its case, the prosecution produced as many as

eleven witnesses. Khalid Pervaiz SI (PW-1) Rehmat Ullah,

complainant (PW-2), Inam Gul, father of the abductee Muhammad
Qadir Khan (PW-3), Muhammad Asif Khan (PW-4), Muhammad
Qadir Khan, abductee (PW-5), Muhammad Nasim Jan (PW-6), Mr.
Rashid Akhtar, Special Judicial Magistrate (PW-7), Muhammad
Iqbal Khan Khattak, Inspector (PW-8), Tariq Mehmood 2179/C
(PW-9), Abdul Sattar, Inspector/CID, Investigation Officer (PW-10)
and Muhammad Yousaf Khan Khattak (PW-11) appeared to
substantiate the prosecution case against the appellant.
5.

The prosecution gave up Shafqat Ullah, Nadim Anwar, Bank

Manager being unnecessary and closed its evidence.

6.

Statement of the appellant under Section 342 of the Code of

Criminal Procedure, 1898 was recorded on 04.03.2009. In reply to

the question as to Why this case against you and why the PWs have
deposed against you, the appellant replied as under: I was falsely implicated in this case by Abdul Qadir by
taking advantage of my only by chance meeting with him at
Shah Faisal Mosque Islamabad which was only for 10 to 12
minutes. He staged this drama of his alleged abduction with
the help of his friends to fetch money from his parents. PWs
in support of said drama of Abdul Qadir and believed him and
falsely deposed against me.
7.

The appellant neither opted to make statement on oath as his

own witness in disproof of the allegations levelled against him as

Criminal Appeal No.109 of 2009

provided under Section 340(2) of the Code of Criminal Procedure,

1898 nor did he produce evidence in his defence.
8.

After conclusion of trial, the appellant was convicted and

sentenced as mentioned above by the learned trial Court; hence the

instant appeal.
9.

Learned counsel for the appellant contends that the appellant

has falsely been implicated in this case; that there is an unexplained

delay of three days in reporting the matter to the police; that the
prosecution witnesses made dishonest improvements in their
previous statements; that there are contradictions in the statement of
the prosecution witnesses; that statement of Muhammad Qadir Khan,
the alleged abductee (PW-5) was recorded with the delay of about
eight days without any explanation and similarly, Muhammad
Yousaf Khan Khattak (PW-11) also joined the investigation with an
inordinate delay; that nothing belonging to the alleged abductee was
recovered at the instance of the appellant during the investigation;
that the alleged recovery of Rs.10310/- from the appellant is of no
avail to the prosecution as the amount given as ransom was not
tainted; that four unknown persons were also implicated by the
prosecution but till today, none of them could be digged out; that the
prosecution has failed to prove its case against the appellant beyond
any shadow of reasonable doubt. Finally, craves that this appeal may
be accepted and the appellant be acquitted of the charge levelled
against him.
10.

Conversely, learned Deputy Prosecutor General assisted by

learned counsel for the complainant vehemently opposes the

contentions raised by learned counsel for the appellant and maintains
that the delay in reporting the matter to the police is not fatal for the
prosecution case; that no material improvement has been made by
the prosecution witnesses rather they had explained the events; that
the prosecution witnesses were having no mala fide or previous ill
will against the appellant to falsely implicate him in this case; that
prosecution case is also corroborated by the partial recovery of

Criminal Appeal No.109 of 2009

ransom amount of Rs.10310/- from the possession of the appellant;

that prosecution has fully proved its case beyond any shadow of
reasonable doubt against the appellant and finally submits that the
appeal in hand may be dismissed being devoid of merits.
11.

We have heard the learned counsel for the appellant, learned

Deputy Prosecutor General assisted by learned counsel for the

complainant, gone through the record with their able assistance and
observed that Muhammad Qadir Khan, abductee (PW-5) is the sole
witness of his abduction by the appellant on 11.07.2008 from Wah.
Though, the testimony of a solitary witness can be considered
sufficient to prove a fact, if it inspires confidence yet we have
carefully discerned that the story narrated by abductee (PW-5) qua
his enticement by the appellant is not probable and confidence
inspiring. The abductee PW-5 was having only eleven days
acquaintance with the appellant as he met him only once at Faisal
mosque as per chance for the first time on 01.07.2008 but
surprisingly on 11.07.2008 on telephone call, he became ready to
accompany the appellant to Peshawar for nothing. During the whole
investigation, aductee Muhammad Qadir Khan (PW-5) did never
point out any of the places where he was taken by the appellant. The
statement of the said witness is also pregnant with the dishonest
improvements. Even otherwise, as per prosecution case, the abductee
was released on 19.07.2008 but without any explanation furnished
by the prosecution throughout the investigation and trial, he joined
the investigation for the first time to get his statement under Section
161 of the Code of Criminal Procedure, 1898 recorded on
27.07.2008 i.e. with the delay of eight days and such delay in
recording the statement of a star witness and that too with no plausible

reason, castes serious doubts about the veracity of the same.

Reference in this regard can respectfully be made to the venerated
judgments passed by the Honble Supreme Court of Pakistan in the

cases of Syed Saeed Muhammad Shah and another v. The State

(1993 SCMR 550), Muhammad Khan v. Maula Bakhsh and (1998
SCMR 570) and Rahat Ali v. The State (2010 SCMR 584). In the

Criminal Appeal No.109 of 2009

case of Rahat Ali supra, the Honble Supreme Court of Pakistan was
pleased to observe as under: 9. Thus there is inordinate delay of silence of P.W.2
which creates doubt about his veracity. Delay of 24 hours, 4
days and 15/20 days in reporting the matter to the police or
recording the statement of witnesses by the police has been
found adversely affecting the veracity of witnesses as held in
the cases of Muhammad Sadiq v. The State PLD 1960 SC 223,
Sahib Gul v. Ziarat Gul 1976 SCMR 236 and Muhammad
Iqbal v. State 1984 SCMR 930, respectively. It has also been
observed by this Court that delay in recording the statement
without furnishing any plausible explanation is also fatal to the
prosecution case and the statement of such witness was not
relied upon in the case of Syed Muhammad Shah v. State 1993
SCMR 550
12.

As per narration of Muhammad Qadir Khan (PW-5), he was

confined by the appellant as well as four unknown persons who were

armed with Kalashnikov and the appellant remained on extensive
physical remand with the investigation agency but no disclosure
regarding unknown persons, the place of confinement of the
abductee or the car allegedly used by the appellant could be surfaced
that reflects adverse to the probity of the testimony of the abductee
Muhammad Qadir Khan (PW-5) qua his abduction and detention by
the appellant.
13.

So far as the evidence of demand of ransom amount by the

appellant is concerned, we have observed that no credible

incriminating evidence connecting the appellant with the offence is
available on record. As per prosecution case, ransom was demanded
by the culprits telephonically through the mobile cell number of the
abductee Muhammad Qadir Khan (PW-5) but no call data record of
the said mobile cell phone number and that of Inam Gul (PW-3),
father of the abductee is available on record to prove the
communication between Inam Gul (PW-3) and the culprits, the given
locations of both and also to confirm the date and time of the alleged
phone calls in absence of which the fact of demand of ransom cannot
be deemed proved. Inam Gul (PW-3) has also improved his

Criminal Appeal No.109 of 2009

statement which is duly got confronted by the defence during the

cross examination regarding the use of another mobile phone number
by the culprits to extend the demand of ransom but no call data
record is available in the prosecution evidence to prove the same
fact. Even otherwise, admittedly, the call was not even recorded by
the complainant that could easily be used against the appellant after
its comparison with his voice. In this view of the matter, it cannot be
said with certainty that it was the appellant who demanded the
ransom from Inam Gul (PW-3). We have also taken notice of the fact
that during the physical custody of the appellant, belongings of the
abductee Muhammad Qadir Khan (PW-5) i.e. mobile phone and the
SIM card etc. could not be recovered at his instance. Similarly, the
prosecution, to prove the payment of ransom amount of
Rs.4,00,000/- to the appellant produced Inam Gul (PW-3) and
Muhammad Yousaf Khan Khattak (PW-11) but their testimony is
also not free from doubts as their statements also bear dishonest and
material improvements duly got confronted by the defence. Inam Gul
(PW-3), during his statemet, has not uttered even a single word
regarding the payment of alleged amount of ransom to the appellant.
The relevant portion of his examination in chief reads as under: The ballheaded persons was sitting on the driving seat and
I paid amount to him. He counted the money. and took away
the amount
Even during his statement before the court, Inam Gul (PW-3), as per
prosecution case, the person who actually paid the amount to the
culprit, has not identified the appellant as the person who received
the ransom amount from him. Muhammad Yousaf Khan Khattak
(PW-11) though, identified the appellant before the learned trial
court yet the fact remains that the appellant was the only accused
who was facing trial when the statement of Muhammad Yousaf
Khan Khattak (PW-11) was recorded on 20.02.2009 prior to which
the appellant had been appearing before the court for many dates of
hearing. It is also an admitted fact that no identification parade of the
appellant was conducted during the investigation and in such

Criminal Appeal No.109 of 2009

circumstances, identification of the appellant, the sole accused in the

box, by Muhammad Yousaf Khan Khattak (PW-11) cannot be given
weight and no sanctity or creditability can be attached to such
pointation or identification. Even otherwise, despite being a material
witness of this case, he did not prefer to get his statement under
Section 161 of the Code of Criminal Procedure, 1898 recorded by
the Investigation Officer and it was only after the arrest of the
appellant on 06.08.2008 when he joined the investigation for the first
time and his statement was recorded. This belated statement does not
carry any judicial certainty as explained supra.
It is also an admitted fact on record that during the extensive
physical remand of the appellant, nothing connecting the appellant
with the alleged offence could be recovered and similarly no
disclosure regarding the place of confinement of the abductee, the
car allegedly used by the appellant when he received the ransom
amount and about his four co-accused persons could be obtained to
corroborate the prosecution story furnished by the prosecution
witnesses Inam Gul (PW-3), Muhammad Qadir Khan (PW-11) and
Muhammad Yousaf Khan Khattak (PW-11).
14.

As regards the alleged partial recovery of ransom amount of

Rs.10,310/- from the possession of the appellant at the time of his

arrest on 06.08.2008, we are of the opinion that the amount was not
tainted and is of no consequence to the prosecution case being not
sufficient to connect the appellant with the commission of alleged
offence. Likewise, during the whole investigation, the place where
the ransom was paid by Inam Gul (PW-3) and Muhammad Yousaf
Khan Khattak (PW-11) to the appellant could not be pointed out by
them.
As far as the bank statement (P-11) regarding the withdrawal
of Rs.4,00,000/- by Muhammad Asif Khan (PW-4), brother of the
alleged abductee to pay the same as ransom money to the culprits on
19.07.2008, taken into possession by the Investigation Officer on
30.10.2008 is concerned, we have noticed that P-11 is a handwritten
document and the same has not been proved by the prosecution

Criminal Appeal No.109 of 2009

through its scribe and even the concerned bank manager has not been
brought to the witness box by the prosecution to prove the same
rather he was given up being unnecessary which also affect the
prosecution story regarding the payment of ransom amount to the
appellant adversely.
All the above mentioned circumstances lead us to hold that the
prosecutions case put forth mainly by Inam Gul (PW-3),
Muhammad Qadir Khan, alleged abductee (PW-5) and Muhammad
Yousaf Khan Khattak (PW-11) does not carry judicial certainty and
circumstantial confirmation, being so the same is not to be relied
upon as is held by the Honble Supreme Court of Pakistan in the case
of Basharat v. The State (1996 SCJ 265) at page 270 as under: 9. There is no judicial certainty or circumstantial
guarantee about the presence of the eye-witnesses on the spot.
On the other hand, there are cogent reasons to doubt that the
eye-witnesses were present on the spot and seen the
occurrence. So, there is no option but to exclude the ocular
evidence from consideration.
15.

After considering all the pros and cons of the case, we have

come to an irresistible conclusion that the prosecution has failed to

prove its case against the appellant beyond any shadow of reasonable
doubt. It is, by now, well established principle of law that it is the
prosecution, which has to prove its case against the accused by
standing on its own legs and it cannot take any benefit from the
weaknesses of the case of the defence. In the instant case, the
prosecution remained fail to discharge its responsibility of proving
the case against the appellant. There is no cavil to the established
proposition that if there is a single circumstance which creates
reasonable and cogent doubt regarding the prosecution case, the
same is sufficient to give benefit of the same to the accused,
whereas, the instant case is replete with circumstances which have
rendered serious doubts about the prosecution story. In the case of
Tariq Pervez v. The State (1995 SCMR 1345), the Honble Supreme
Court of Pakistan, at page 1347, was pleased to observe as under:-

Criminal Appeal No.109 of 2009

5. The concept of benefit of doubt to an accused person

is deep-rooted in our country. For giving him benefit of
doubt, it is not necessary that there should be many
circumstances creating doubts. If there is a circumstance
which creates reasonable doubt in a prudent mind about the
guilt of the accused, then the accused will be entitled to the
benefit not as a matter of grace and concession but as a matter
of right.
The Honble Supreme Court of Pakistan while reiterating the same
principle in the case of Muhammad Akram v. The State (2009
SCMR 230), at page 236, observed as under:13. It is an axiomatic principle of law that in case of
doubt, the benefit thereof must accrue in favour of the accused
as matter of right and not of grace. It was observed by this
Court in the case of Tariq Pervez v. The State 1995 SCMR
1345 that for giving the benefit of doubt, it was not necessary
that there should be many circumstances creating doubts. If
there is circumstance which created reasonable doubt in a
prudent mind about the guilt of the accused, then the accused
would be entitled to the benefit of doubt not as a matter of
grace and concession but as a matter of right.
16.

In the light of above discussion, we are of the considered view

that the prosecution could not discharge its liability to prove its case
against the appellant successfully, therefore, we accept Criminal
Appeal No.109 of 2009 filed by Rizwan (appellant), set aside his
conviction and sentence recorded by the learned trial court and
acquit him of the charge levelled against him by extending him the
benefit of doubt. He is in custody, be released forthwith if not
required in any other case.

(Shahid Hameed Dar)

Judge

(Syed Shahbaz Ali Rizvi)

Judge

APPROVED FOR REPORTING:

Judge
Javaid

Judge